March 14, 2008

Preparing a Discovery Plan for a Civil Lawsuit

Attorney: Now that we’re through the initial pleading stage of your lawsuit, we need to create a pre-trial discovery plan going forward.

Client: What’s that?

A: A discovery plan is basically a “roadmap” for how we’re going to collect the evidence we need to prove your case at trial. I’ve already been giving you litigation case budgets every quarter. A discovery plan goes hand in hand with a case budget.

C: Why do we need a roadmap?

A: Because, without one, it would be like driving all over the road, so to speak, as we move forward toward trial. A discovery plan keeps us focused on the road ahead, avoiding wasteful detours.

C: I’ve heard that discovery can cost up to 70% of the total legal fees in a lawsuit. Is that why we need a discovery plan?

A: One of the reasons, yes. We need to prioritize how and where to spend legal fees getting ready for trial. A discovery plan helps set those spending priorities. Without a discovery plan, the amount of legal fees we end up spending might be more than that 70% figure.

C: Have you done discovery plans before in other lawsuits?

A: Yes, in every case. Just like litigation case budgets. I’ve gotten into the habit of doing both of them, and clients like that.

C: Tell me how we’re going to prioritize. What are our options on discovery?

A: First, let’s discuss the “menu” of discovery requests available to us in this case. Some discovery requests are written, such as interrogatories. Others, like witness depositions, are live and oral in nature.

C: I’m assuming that written discovery is less expensive than live, oral discovery?

A: Generally speaking, yes, which is why we’ll want to utilize written discovery as much as possible in the case, and only take oral witness depositions that are really necessary for trial. When we send out our “outgoing” written discovery requests to your opponent in this lawsuit, that’s called “propounding discovery” on them. They have to respond in writing to our requests, under penalty of perjury.

C: Will the other side be doing the same thing to us?

A: You bet. Your opponent will also be propounding their own written discovery requests to us. We’ll have to respond to that “incoming” written discovery. Written discovery becomes a back-and-forth, two-way “paper” battle in a civil lawsuit. If you’ve ever heard the term “paper wars,” that’s what it means.

C: How do we decide when to use written discovery versus oral discovery?

A: That’s part of the discovery plan. I’ll get into the details in a moment. To answer you question, though, generally we’ll use less-expensive written discovery requests to set up the more expensive oral discovery, like witness depositions. We’ll start off by propounding some written discovery requests to your opponent.

C: Which ones? Can you explain each of the different written discovery requests to me?

A: Sure. The first, and simplest, written discovery requests in a lawsuit are “written interrogatories.” Those are questions that I draft, which are designed to get information from your opponent that we can use in our case, or to find out what they intend to use in their case. Information such as the names of witnesses, the identity and whereabouts of evidence documents in the case, or the arguments that the opposing side will make at trial. All of that information, and much more, can be learned by propounding written interrogatories.

C: How do we know that the other side will answer them truthfully?

A: Your opponent has to send their written responses back to us under penalty of perjury, just like in court. If they lie, and we catch them, we can “impeach” them at trial. That means showing the jury that they’re lying. That’s the quickest way to lose a case at trial, to have the jury believe your side is lying. Juries hate that. So if your opponent wants to lie in their responses to our interrogatories, under oath, they take a big risk.

C: Let’s assume they answer them truthfully? What happens next?

A: When witnesses are identified in their interrogatory responses, we can consider whether to take oral depositions of those witnesses, or maybe just interview them informally. If evidence documents are identified, we can decide whether to try to obtain those documents somehow. There are a few ways to do that.

C: Do we have to ask all our questions at one time? What if we forget to ask something?

A: We can propound more than one set of written interrogatories to your opponent before trial. In fact, the way they end up answering our first set of questions may prompt us to propound additional sets of questions to them to follow up on their earlier answers. We want to get as much information as we can through the interrogatories.

C: And they’ll be doing the same thing to us?

A: That’s right, like a mirror image. Which is why I’ll need your helping in answer their incoming interrogatories when they arrive. You know who our witnesses will be at trial, and which evidence documents we have in our possession. The other side will want that information. We’ll have to provide it to them. Discovery is intended to keep either side from unfairly surprising the other side with undisclosed evidence at trial.

C: What are some other types of written discovery?

A: The next is the “request to produce documents.” We can propound that request on your opponent, asking them to deliver to us any documents, records, writings, paper files, audio/video materials, computer files, and the like that might relate to the lawsuit. That means they have to search for and find everything they have in those document categories, review everything, and tell us what’s relevant to this lawsuit. Then they have to give it to us for our inspection and copying.

C: That sounds like a giant pain.

A: It is. In really big lawsuits, each side may have millions of pages of documents, in both paper and electronic format, that need to be located, reviewed, and turned over to the other side. Fortunately, you have a straightforward, non-complex lawsuit, so the amount of paper that each side has to produce should be manageable.

C: Do they have to respond and produce documents under penalty of perjury, too?

A: Yes. If they try to hide relevant documents, and we catch them, the judge could punish them at trial with some tough penalties. I’ve seen that happen before. Plus, it would make them look like they have something to hide. And if they get caught actually destroying documents to keep them from us, that’s even worse. They could forfeit the case to us if they did that.

C: How do we find out if the other side is hiding or destroying documents?

A: Because there is often more than one witness in a case who knows which documents exist in your opponent’s files. Several people could have knowledge of that. Maybe they know your opponent, or worked with your opponent. We can find out who those people are, and interview or depose them. All it takes is one witness to speak up and disclose the existence of a document. Then your opponent is stuck. That’s the big risk for them in hiding or destroying documents.

C: Are there any ways they can legally withhold documents from us?

A: Yes. They can list those documents in a “privilege log,” which tells us exactly which documents they’re withholding, and on what legal grounds. That allows us to fight them over the documents in court. If they give us a privilege log, then they’re not hiding anything, just making us go to court to get them.

C: I’m going to have to produce my own documents to the other side, too, right?

A: Yes. When they send us their own request to produce documents, I’ll go over the document categories in it with you. Then you’ll need to look through all your files for responsive documents. Then you’ll give me what you have, and I’ll review them myself to see which documents we produce right away, and which ones we withhold in a privilege log.

C: Can this happen more than once, like with interrogatories?

A: Yes, each side can send more than one request to produce documents to the other side. For that reason, responding to document production requests ends up being more time-consuming for clients than other written discovery requests.

C: What if I don’t have the time to search through all my files myself to find responsive documents? Can you do it for me?

A: I could, or I’d probably have one of the associate attorneys in my office do it. But if would be more expensive that way. If you and I divided the labor on the document production, we could save money on legal fees. If you searched your own files, and I then reviewed what you found, that’s the most affordable approach. There’s a term for when attorneys let clients perform some of the work themselves in a lawsuit that clients are capable of doing, to save on legal fees. It’s called “unbundling legal services.”

C: What if we need documents that third-parties have, instead of my opponent?

A: We can subpoena the third-parties to produce those documents to us, too.

C: What comes after requests to produce documents?

A: One of the last types of written discovery we would use, usually closer to trial, are “requests for admission of facts.” These are written requests that I would draft to your opponent to force them to either admit or deny certain statements of fact about the case. Requests for admission would help us pin down the other side’s position in advance of trial.

C: What happens if my opponent decides not to respond to our written discovery requests? What’s our recourse?

A: We can file a “motion to compel discovery.” I can give you a cost estimate for that later on. We would go to court and ask the judge to order the other side to respond. If they didn’t comply with a court order, they’d get sanctioned by the judge.

C: Then there would be the oral witness depositions, too?

A: Yes. We can talk about our strategy for taking witness depositions at our next meeting.

C: So would our discovery plan put together all these different methods of discovery into one big package?

A: Exactly. We would coordinate each method of discovery, written and oral, with one another. We would create a timetable for accomplishing everything in different phases. Just remember that a discovery plan would relate only to our side of the case. We can’t predict everything your opponent will do in discovery, and how we’ll have to respond. So our discovery plan has to remain flexible.